KUALA LUMPUR: Former Law minister Datuk Zaid Ibrahim said the special committee looking into issues concerning the enactment of Syariah laws in the states must address shortcomings in the definition of khalwat offences (close proximity).
He said this was needed in the wake of a construction worker who became the first khalwat offender in Terengganu to be sentenced to caning by the Syariah High Court in the state yesterday.
Zaid said there must be a more precise definition of what ingredients need to be established before one can be convicted of the offence.
Based on current definition, he said a totally innocent encounter by two individuals of the different sex can lead to them being prosecuted for the offence of khalwat.
"I hope Tun Zaki Azmi (who is chairing the special committee) will address this issue.
"He did a fantastic job in getting the civil court system functioning well when he was the Chief Justice. He can do the same for the Syariah," he said, adding Zaki should also recommend that a defence counsel must be present to represent those facing criminal cases under the Syariah Enactments.
He said the government must provide one for those who cannot afford a defence counsel as Syariah offences invariably attract harsh punishments.
"A defence lawyer can make all the difference," he said, while citing the case of a young contractor who was ordered to be caned by the Terengganu Syariah High Court yesterday.
Zaid said the accused would have received a better deal if he had the services of a defence counsel and pointed out that an Islamic government must be a compassionate one.
"They should not just clamour for harsh punishments but a system of justice that is fair....give an accused person a lawyer.
"After all, khalwat offenders generally involve construction workers and poorer segments of the community. They typically plead guilty without proper advice.
"VVIPs or top politicians are seldom hauled up. Their encounters are in 6-star hotels....places that are relatively safe from prying eyes with suspicious minds," he said.
It was reported that Syarie Judge Hamidi Shafie ordered Mohd Affendi Awang to be caned four times and fined him RM3,000, in default six months jail, after the 42-year old pleaded guilty to committing khalwat.
Mohd Affendi became the first person to face whipping for committing khalwat under Section 31 (a) of the Syariah Criminal Offences Enactment (Takzir) (Terengganu) Amendment 2022 which came into force last Jan 1.
Zaid said under the law if one was with the opposite sex in a car in an isolated place in Kelantan or Terengganu, then the ingredients of the khalwat offence are fulfilled.
"It does not matter that you were not caught having sex. Being together is enough to get you in trouble.
"If the special moral police suspect that you are about to commit an immoral act, then you will also be arrested.
"If you are dating a girl or counselling a friend in distress and need a quiet place to chat with her, that's khalwat.
"Suspicious minds always see things differently. If you are gay, then it's alright. It's not an offence. Only heterosexuals are targeted," he said, adding the so-called religious states have harsh sentences for moral offences even as Saudi Arabia had already done away with flogging.
"However...like they say, we are more Islamic than the Saudis or the Indonesians.
"They also claimed that we need harsh punishments to prevent illicit sex and cases of abandoned babies.
"However, cases of infanticide abandoned babies, and teenage pregnancies are more prevalent among the poorer Malay communities despite the harsh sentence," he said.